So what does this mean? For example, is it - as posters on some websites have been suggesting - now an offence to use a sex aid in a Scottish hotel room? (Thanks to one correspondent for the disturbing image of an Ann Summers-Halfords collaboration.)
Well, the Scottish offence of breach of the peace requires "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community... conduct which does present as genuinely alarming and disturbing, in its context, to any reasonable person" (Smith v Donnelly 2002 JC 65, para 17). So, two thoughts:
- For someone to commit breach of the peace in a "private" place, it must be shown that they were likely to be discovered (see, e.g., Thompson v Macphail 1989 SLT 637). Here, that seems to have been established by Mr Stewart's failure to respond when the cleaners knocked on the door several times. (Exactly what he should have said to them to indicate that they would be better off not entering is another question.)
- Even if the likelihood of discovery is established, the conduct must still be shown to be sufficiently alarming. Most solo or consensual sexual activities probably fall far short of that standard, at least where the accused is trying to keep their actions private. And it's not even clear that sex with a bicycle in a hostel room meets it either. Confusing, yes. Alarming, maybe. But does it "threaten serious disturbance to the community"? How likely is that?